Court File and Parties

COURT FILE NO.: CNJ 8494 DATE: 2017/05/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. BREANNA FLYNN

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: V. Karadzic. For the Crown J. Marentette, for the Defendant

HEARD: May 1, 2017

Disposition on Sentence

Orally

[1] Breanna Flynn was found guilty on February 28, 2017 of one count of theft over $5,000 contrary to s. 334 (a) of the Criminal Code of Canada and one count of possession of property, namely Canadian currency, of a value exceeding $5,000, knowing that it was obtained by the commission in Canada of an indictable offence, pursuant to s. 355 (a) of the Criminal Code. It is appropriate that the conviction on the latter charge be stayed under the Kienapple principle.

[2] What follows is my disposition with respect to the fit sentence for the crime and my reasons therefor.

Factual Background

[3] The circumstances of the offence were set forth in my Reasons for Judgment of February 28, 2017, reported at R. v. Flynn, 2017 ONSC 1238.

[4] Briefly, Ms. Flynn was employed as a financial operations assistant at the Wilfrid Laurier University bookstore in Waterloo, Ontario in September, 2014. Her duties included the processing of daily sales in the bookstore and preparing deposits for delivery to the bookstore’s chartered bank. On Monday, September 15, 2014 Ms. Flynn was working alone in the cash office of the bookstore as her co-worker had called in sick. On Tuesday morning, September 16, three marked “Brinks” bags were discovered to be missing from a combination safe in the cash office. The three missing deposit bags should have contained the sum of $31,298.20 in Canadian currency. On September 30, 2014 police officers arrested Ms. Flynn as she arrived at work and conducted a search incident to arrest of her vehicle as well as a purse and a bag found in her vehicle and on October 1, 2014 a search of Ms. Flynn’s home was conducted under warrant. In a shoebox in the master bedroom of Ms. Flynn’s home was found $27,962 in Canadian currency together with three plastic “Brinks” deposit bags marked with serial numbers matching the sequential serial numbers on the Brinks bags which were missing from the bookstore safe.

[5] Ms. Flynn’s personal circumstances were described in some detail by the author of the presentence report.

[6] Ms. Flynn is 36 years of age and has no previous criminal record. She was born in Guelph Ontario and raised on a farm near Mount Forest, Ontario as the youngest of three children. Until her late teens Ms. Flynn’s family life was stable and generally normal. She was not close to her siblings as her sister was much older and she did not share interests with her brother. In her late teens the family circumstances changed when her father suffered a brain injury. One of the outcomes was that her father’s personality changed for the worse, putting strain on her parents’ marriage and they eventually divorced when Ms. Flynn was 24 years of age. Ms. Flynn is not particularly close to her mother and her siblings, but is not estranged from them as was erroneously reported in the presentence report. She maintains some contact with her father who lives in the Philippines.

[7] Ms. Flynn was married at the age of 23 and subsequently separated in 2014. She and her husband have not yet divorced, but Ms. Flynn has no desire to reconcile with her husband.

[8] Ms. Flynn is currently in a common-law relationship. She met her partner in October, 2016 and began to live together in January, 2017. She described the relationship as a very positive one.

[9] Ms. Flynn completed one year of a law clerk program at Fanshawe College and then completed a two-year Business Administration diploma, graduating with honours. Since her graduation she has worked as a financial administrator. Her last employer was aware of the charges before the court when she was hired in October 2015, but believed they had to terminate her employment after she was found guilty of the charges.

[10] Ms. Flynn drinks only in moderation and has never used illicit drugs. She is reported to have no problems with the use of alcohol or drugs and does not gamble.

[11] Ms. Flynn has no history of mental health issues, although she has experienced considerable stress surrounding the charges and the court proceedings.

[12] The author of the presentence report reported that Ms. Flynn continues to maintain her innocence of the charges for which she was convicted and that she does not trust banks to control her earnings.

Impact On The Victim

[13] An important factor in considering a fit sentence in the circumstances is the effect on the victims of the crime.

[14] Ms. Flynn’s former employer Wilfrid Laurier University suffered a loss of $2,937.85, net of the funds recovered upon the search of Ms. Flynn and her vehicle incident to arrest and the search of her home under warrant.

[15] The University did not deliver a victim impact statement.

Positions Of The Parties

[16] The Crown submits that a fit sentence in the circumstances of the offence and the offender would be as follows: (a) 6 to 9 months incarceration; and (b) a period of probation, including a condition that Ms. Flynn make restitution by periodic payments.

[17] The defence submits that a custodial sentence of 90 days, served intermittently, followed by a period of probation tied to a restitution order providing for periodic payments would be appropriate.

Guiding Principles

[18] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. The stated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[19] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. However, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[21] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[22] The Court of Appeal in the case of R. v. McEachern, [1978] O.J. No. 987 confirmed at para. 8 that it has long been established that the most important principle in sentencing a person who holds a position of trust is that of general deterrence. At para. 9, Howland, C.J.O., writing for the Court stated “the public interest requires that it be made very clear to one and all that in the absence of exceptional circumstances a person holding a position of trust who steals from his employer must expect a term of imprisonment.” (See also R. v. Dobis, [2002] O.J. No. 646 (C.A.) at paras. 42-46, R. v. Caulk, 2005 NBCA 86 (N.B.C.A.) at para. 3, R. v. Fulcher, 2007 ABCA 381 (Alta. C.A.) at para. 30, and R. v. Budden, 2015 NBQB 98 (N.B. Q.B.) at para. 11).

[23] The Alberta Court of Appeal in the case of R. v. Douglas, 2014 ABCA 113 noted at para. 12 that denunciation and deterrence are of paramount concern in all cases of trust theft, that theft from an employer requires a sentence which will deter any other fiduciary tempted to do the same, and in cases involving the misappropriation of specific funds entrusted to the offender, the sentencing goals of denunciation and deterrence take on further importance.

Aggravating And Mitigating Circumstances

[24] As indicated above, s. 718.2 (a) of the Criminal Code requires that I take into account the aggravating and mitigating circumstances which may serve to increase or reduce the sentence to be imposed. Pursuant to s. 718.2 (a)(iii), evidence that the offender, in committing the offence, abused a position of trust is deemed to be an aggravating circumstance.

[25] The Crown points to the following aggravating circumstances: (a) the actions of Ms. Flynn were motivated to a significant degree by greed; (b) the amount of the loss involved, being in excess of $31,000; (c) the fact that the theft was carried out in a breach of trust situation and that Ms. Flynn took advantage of the lack of supervision by her employer to perpetrate the theft.

[26] The mitigating circumstances include the following: (a) Ms. Flynn had no criminal record and no involvement in the criminal justice system prior to this offence; (b) the fact that the theft was not repeated or frequent, but represented an isolated lapse of judgment; (c) until her conviction she has been able to maintain gainful employment; and (d) Ms. Flynn was of previously good character and antecedents, however, this factor is blunted by the fact that it is often the case that offenders who perpetrate breaches of trust are in a position to do so by reason of their reputation for good character and trustworthiness.

[27] Although not an aggravating factor, Ms. Flynn does not benefit from the mitigating effect of a guilty plea, as she did not plead guilty and has not accepted responsibility for her actions as disclosed in the PSR. Similarly, Ms. Flynn has not made any restitution to date.

[28] I would not view the modest amount of the net loss to Ms. Flynn’s employer as a mitigating factor. It was only fortuitous that a substantial portion of the funds taken were found as a result of the police searches. This fact would not serve to mitigate Ms. Flynn’s moral culpability.

Analysis

[29] Crown and defence counsel do not disagree that in the case of an offence of this nature, being a theft from the offender’s employer while in a position of trust, the principles of deterrence and denunciation are paramount, and mitigating factors and rehabilitation are secondary. However, Mr. Marentette, for Ms. Flynn, argues that the degree of trust conferred on Ms. Flynn by her employer, and the resulting degree of moral culpability, should be regarded as being at the lower end of the spectrum. Moreover, he argued that the crime committed by Ms. Flynn lacked any sophistication and therefore differed markedly from the facts in many of the reported cases involving thefts from employers in which the principles of deterrence and denunciation were emphasized.

[30] No cases were cited, and certainly no Superior Court of Justice cases were cited, in which an intermittent sentence was imposed in a case involving theft or fraud in a breach of trust situation. Moreover, no case was cited in which an intermittent sentence was imposed where the offender did not have current employment or other comparable responsibilities which an intermittent sentence would serve to protect and preserve.

[31] The question before me is whether the predominant principles of deterrence and denunciation may be satisfied in this particular case by the imposition of a sentence of 90 days or less served intermittently.

[32] Ms. Flynn has not accepted any responsibility and a trial was required. Over two and one-half years have passed since Ms. Flynn was charged with the offence and no amount has been paid by way of restitution.

[33] I am not satisfied that the period of incarceration of 90 days or less, served intermittently, would satisfy the direction repeatedly given by the Court of Appeal, and by appellate courts across Canada, that in cases involving theft or fraud in a trust situation, the principles of denunciation and deterrence are to be given primacy, with relatively less emphasis to be placed on rehabilitation and the circumstances of the offender.

[34] Although I would ordinarily be reluctant to make reference to one of my own decisions, in this case the Crown made reference to my recent decision in R. v. Mason, 2017 ONSC 1509 (S.C.J.) and a good deal of the argument centred on it. In that case the offender was 23 years of age and was convicted of having stolen in the range of $19,887.05 to $21,637.05 from his employer. He was found to have been in a position of trust in his capacity as a temporary route driver for a vending machine company responsible for, among other things, emptying vending machines of the cash proceeds of sale and replenishing the coin mechanisms which dispensed change to customers. Like Ms. Flynn, Mr. Mason had no criminal record and enjoyed a good reputation in the community.

[35] I rejected the defence submission in Mason calling for an intermittent 90 day custodial sentence and found a sentence of four months straight incarceration, followed by a period of probation, to be the least restrictive sentence which would reasonably address the applicable principles of sentencing.

[36] In my view, Ms. Flynn’s degree of moral culpability is comparable to Mr. Mason’s. Although Mr. Mason perpetrated his crime over an approximate three month period, whereas Ms. Flynn’s act was a one-time event, I would view the degree of trust which Ms. Flynn’s employer vested in her to be greater. She held a diploma in Business Administration and would be regarded by virtue of her previous experience and length of service to be more mature than Mr. Mason. She was the only full-time financial operations assistant in the bookstore and her responsibilities included handling often large sums of money on a daily basis and preparing them for deposit. She worked alone each afternoon when her part-time co-worker was not there and there was no supervision or video surveillance in her work space. She was a relatively long term employee and had earned the trust of her employer during her tenure. The aggravating fact that Mr. Mason’s defalcation had occurred over an extended period is balanced by the greater amount involved in Ms. Flynn’s defalcation and the relatively greater degree of employer trust within which she worked.

[37] I do not find the facts in Mason to be meaningfully or functionally distinguishable from the facts in this case in responding to the applicable principles of sentencing. As I found in Mason, I find a sentence of four months incarceration, followed by a period of probation, to be the least restrictive sentence which would reasonably address those principles.

[38] Both counsel in this case have proposed a restitution order tied to a probationary period, rather than a stand-alone restitution order.

[39] The Crown did not ask for a DNA order under s. 487.05(1) of the Criminal Code and I find that such an order would not be appropriate. There is no indication that the investigation could have been advanced by the presence or absence of Ms. Flynn’s DNA on any document, and there is little or no likelihood of her committing any crime in the future that could be investigated more reliably with her DNA (see R. v. Palantzas, [2009] O.J. No. 3862 (S.C.J.)).

Disposition

[40] Ms. Flynn would you please stand.

[41] For the reasons just outlined, I impose a sentence of four months in custody. Following your release from custody you will be placed on probation for a period of thirty months. The terms of the probation will be that you report to your probation officer upon your release and as directed thereafter, take such counselling programs as may be directed by your probation officer, that you keep and maintain suitable employment and that you make restitution to Wilfrid Laurier University at the rate of $97.93 per month until the full amount of $2,937.85 is paid.

D.A. Broad, J. Date: May 1, 2017